Good News for Government Transparency!

Last year the Freedom Center of Missouri expanded its mission to include not only constitutional litigation, but also litigation under this state’s Sunshine Law, which guarantees citizens the right to obtain open public records and to attend – and record! – open public meetings of government entities. The Freedom Center’s Director of Litigation, Dave Roland, had already been handling several Sunshine Law cases, and the Freedom Center recently adopted four of those. That is why we are very pleased to announce that so far this year two Missouri Circuit Courts have issued very positive rulings regarding the Sunshine Law.

In an Audrain County case (handled by Dave), a judge ruled that multi-jurisdictional drug task forces are subject to the Sunshine Law and that the East Central Missouri Task Force committed several violations of that law. A number of drug task forces statewide have been refusing to produce public records, arguing that they are not “public governmental bodies,” despite the enormous power and financial resources they are given to enforce the state’s drug laws. If courts had accepted these arguments, task forces would not only have been exempt from citizens’ oversight, courts themselves would have been powerless to review the actions and policies of these powerful law enforcement entities. We are very hopeful that several other courts will quickly reach the same conclusion that these task forces must be transparent and accountable to the people of this state.

In a St. Louis County case, a judge ruled that county prosecuting attorneys may not simply assume that requested records are exempt from public review without even looking at them, and that if a government entity wants an attorney to review and redact the documents before they are produced that expense must be borne by the government, not the person requesting the documents. One of the favorite tactics government entities use to thwart the purposes of the Sunshine Law is to tell citizens that the entity will produce documents… but only after the citizen puts up an extraordinary amount of money “to cover the costs of producing the documents.” Very frequently, those costs include the expense of having an attorney review the requested documents to determine if any of the information in them should be redacted. As you can imagine, these costs very quickly become too much for an ordinary citizen to afford, so they simply pass up their opportunity to see the documents they had requested. The decision in this case makes clear that if the government wants an attorney to review requested documents it is the government’s responsibility – not the citizen’s – to cover the cost of that review.

Both of these cases are steps in the right direction and indicate that we are on the right path to ensure that all government entities are transparent and accountable to the people of this state.

The four Sunshine Law cases the Freedom Center has adopted (about which we’ll be posting more in the future) are as follows:

Malin v. Metro Multi-Jurisdictional Undercover Drug Program, et al. – In 2014 the Missouri State Highway Patrol website maintained a map of the state’s operational drug task forces, including contact information for each. Aaron Malin was interested in learning how these law enforcement agencies were using the extraordinary authority and taxpayer funding that the state had given them, so he began sending Sunshine Law requests to each of them. In response to the request he sent regarding the St. Louis City Drug Task Force, however, an attorney named Mark Lawson responded that the city did not have such a task force. Malin pointed out that the task force was listed on the Highway Patrol’s website along with a phone number, and that the person who answered that phone number had given Malin the fax number to which Malin had sent his Sunshine Law request. Lawson continued to insist not only that St. Louis City had no drug task force, but also that neither he nor Chief of Police Sam Dotson had any idea to what the Highway Patrol website could be referring. Months later, Malin discovered through documents produced to him by the Missouri Department of Public Safety not only that St. Louis City and its Police Department had sent to DPS scores of documents making reference to “St. Louis City, Drug Task Force.” What is more, those documents identified Mark Lawson – the very attorney denying the task force’s existence – as the “Authorized Official” who submitted applications for public funding and signed the contracts securing that funding. Malin’s lawsuit against the task force asserts that it is a particularly heinous violation of the Sunshine Law for an attorney who has been a legal representative of a public governmental body to refuse to produce documents on the basis that the public governmental body doesn’t even exist.

Malin v. St. Louis County Multi-Jurisdictional Drug Task Force, et al. – The St. Louis County Multi-Jurisdictional Drug Task Force, on the other hand, is very public about its existence. Malin asked for copies of the meeting minutes for the task force’s executive board, which the Sunshine Law requires all public governmental bodies to take and retain. A representative for the task force responded that there were no minutes for meetings held prior to March 2015 – indicating either that the executive board was not providing legally-required oversight for the task force or that it was not keeping the legally-required records regarding those meetings. The representative for the task force did, however, turn over an electronic document in Microsoft Word format that purported to be minutes for an executive board meeting held on March 19, 2015, but there was something very strange about this document. Malin submitted his request on July 7, 2015. The metadata for the electronic document (which did not even include all of the information required of meeting minutes) showed that it had been created on July 8, 2015 – the day after Malin made his request and nearly three months after the meeting had taken place. Later, the task force produced a very different document that also claimed to be minutes for the March 19, 2015 executive board meeting, and also a document purporting to be minutes for a September 3, 2015 executive board meeting. Malin’s lawsuit against this task force alleges that it violated the Sunshine Law by failing to maintain records of executive board meetings in accordance with legal requirements, and also that the task force unlawfully fabricated the two sets of “minutes” for the March 29, 2015 executive board meeting long after the meeting took place.

Malin v. MUSTANG Task Force, et al. – When Malin first requested records from the Mid-Missouri Unified Strike Team and Narcotics Group (MUSTANG) Task Force, its seemed like the task force might voluntarily comply with the Sunshine Law. The task force arranged to make certain documents available for Malin’s review, but when Malin began looking at the documents they included a number of redactions not authorized under the law. He requested from the task force additional documents (including minutes from meetings of the executive board) and, although the task force board’s chairman sent some documents, they were not the documents Malin had requested. When Malin insisted that the task force must produce the documents Malin had requested, it stopped responding to his requests altogether. The Freedom Center’s Director of Litigation, Dave Roland, sent a letter to the board chairman, explaining that he had a legal obligation, at a bare minimum, to respond to Malin’s requests and also explaining the legal penalties for refusing to comply with the Sunshine Law. More than a month later, because the task force still refused to acknowledge several of Malin’s document requests, Malin sued, arguing that the task force had been clearly and fully informed of its legal obligations as well as the penalties for non-compliance, but still refused to comply with the law’s requirements.

Malin v. Cole County Prosecuting Attorney – Malin submitted several Sunshine Law requests to Mark Richardson, whom the people of Cole County had elected to serve as their Prosecuting Attorney. In response to each of Malin’s requests, Richardson sent a letter that said, “The records you requested, even if they existed, would not be categorized. To search, categorize, and compile such records would be unduly burdensome. The costs to find and copy would be hard to calculate. Without confirming or denying the existence of records you requested, any official records of this office would be closed to the public.” Of course, this statement was not at all true. While the Prosecuting Attorney’s office might under very limited circumstances be authorized to redact certain information from the records Malin had requested, the Prosecuting Attorney’s office does not enjoy blanket exemption from the Sunshine Law’s requirements. Dave Roland sent Richardson a letter that carefully explained Richardson’s legal obligation to search for responsive records and, if any were to be withheld, to identify the statutory provisions that Richardson believed to justify the withholdings; Richardson refused either to respond to Roland’s letter or to properly respond to Malin’s Sunshine Law requests. Malin sued, arguing that Richardson had been clearly and fully informed of his legal obligations aw well as the penalties for non-compliance, but he had still refused to comply with the law’s requirements. The Freedom Center is partnering with the American Civil Liberties Union of Missouri in this case.

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